www.elsblog.org - Bringing Data and Methods to Our Legal Madness

01 May 2009

Discussing "Bias and the Bar" II

Sara - We definitely need to think more about how we can operationalize some of the features of "judicial temperament." I personally need more time to really think this through, so I instead thought it might be good to write about the question that keeps running through my head as I try to operationalize judicial temperament. The issue I'm struggling with, and which I'd love to hear the thoughts from others, is how we guard against imputing too much to the obvious proxies we'd have to use. For example, to play devil's advocate, I'm interpreting your suggestion of using the Congressional staff variable to reflect the quality of "open-mindedness" as implying that the political nature of the job might actually point towards close-mindedness. The question is whether that is reading too much into what it means - or what the ABA perceives it to mean - when someone has served on a Congressional staff. We thought about it in two terms: (1) an obviously political position, but also (2) a not-always-good substitution for traditional legal experience, especially given the political nature of the job. Put another way, did the person get the nomination because of their political service, or due to their qualifications? However, is the acknowledgement of the political flavor of the appointment and the nominee's background the same as measuring whether a nominee will be viewed by the ABA as "open-minded"? Alternatively, by this definition, our inclusion of the Years as Public Interest Lawyer could be seen as another measure of potential "open-mindedness" or "commitment to equal justice" given the equal justice-nature of much public interest work. But, again, are we presuming too much to suggest that the ABA views such work in this manner? Finally, what are service as a government attorney? The vast majority of people in this category - which we found the ABA viewed positively - serve as some type of prosecutor. Is this a signal of substantial courtroom and/or litigation experience, or could one possibly somehow link such experience - either positively or negatively - to some of the suggested ways of understanding "judicial temperament" in the ABA's guidelines? More broadly, how do we make sure that even our operationalization of these terms does not in and of itself make judgments? For example, does it (or should it) matter who the staffer worked for in Congress? Does it matter what issues the staffer focused on?

Of course, much of this relates back to Sara's initial post about the impact of the ABA's investigations - it's not merely that someone was a judge, but that the ABA attempts to determine whether they really were a fair and impartial judge. The problem, however, is that we have little to work with on the outside. We could obviously attempt to look into the information brought forth by others (i.e., the media, interest groups, senators, etc.), but (a) most nominees receive little attention if any, and (b) the information we hear publicly about is likely to be somewhat biased. In fact, as a side note, a big problem is the lack of information on nominees -- when I was constructing a list of nominees who were opposed by interest groups, there were a surprising number who has zero articles written about their nominations, including passing mentions that they were nominated and/or confirmed. Which brings us back to the issue of how do we attempt to explain something - or some idea - for which we only have limited information and potential proxies?

Thoughts?

Finally, we will certainly work on creating a more nuanced ideology measure. The one question, Sara, is were you referring to the distance between the ABA committee and the nominee or the distance between the Judiciary Committee and the nominee? The issue is that, and forgive me if I’ve totally misunderstood your post, is that I'm just not sure what it would mean to hypothesize that the ABA Standing Committee's ratings are influenced by how ideologically distant the nominee is from the Senate Judiciary Committee. This would in turn have to mean that we believe that the ABA is more likely to rate nominees highly in times of unified government (when the ideological distance would be closer), and rate them less well in times of divided government (when the ideological distance would be farther). And, this would suggest the ABA's ratings are in part driven by the makeup of the Judiciary Committee, rather than based on the nominee's background. Obviously, if we could create some measure of the ABA Committee's ideology that we could then compare to the nominee's ideology, that would be great.... Last thought: yes, determining whether the bias has switched over time is definitely a worthy question; the issue, as always, is getting the data.

Sara - thanks again for really pushing me/us to think about these issues!

Re: Chris's post yesterday, the only possible response is to say thank you for such a great suggestion, and the reminder to pay close attention to how one describes what their model actually does - and for providing us with all of the information on how to put that suggestion into action! We appreciate the guidance!! And, we'll let you know what we found as soon as we're done.